COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00063-CV
JOSEPH M. INGRAM APPELLANT
V.
SANDRA V. INGRAM APPELLEE
----------
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
----------
MEMORANDUM OPINION 1
----------
Appellant Joseph M. Ingram attempts to appeal from the trial court’s
December 30, 2013 order that granted appellee Sandra V. Ingram’s motion to set
aside a default judgment. We dismiss the appeal because we lack jurisdiction.
See Tex. R. App. P. 43.2(f).
1
See Tex. R. App. P. 47.4.
In August 2013, appellant filed an “Original Petition for Bill of Review and
Motion to Abate Disbursement of Retirement.” In that document, appellant
contended that he had divorced appellee in 2009 and that a dispute had
developed between the parties concerning the amount of appellant’s military
retirement that appellee was entitled to receive.
On October 4, 2013, the trial court signed a default judgment in appellant’s
favor. The court set aside an April 2013 clarifying domestic relations order,
awarded appellant $2,493.75 in attorney’s fees and expenses, and taxed costs
against appellee.
On December 30, 2013, pursuant to a motion filed by appellee earlier that
month, the trial court signed an order vacating the October 4 default judgment.
The court reinstated the clarifying domestic relations order but did not purport to
render a final decision on appellant’s petition for bill of review.
On January 31, 2014, appellant filed an untimely motion for new trial. 2 On
February 25, 2014, appellant filed a notice of appeal.
We sent a letter to appellant on March 13, 2014 to express our concern
that we lack jurisdiction because the trial court’s order setting aside the default
judgment was not appealable. We informed appellant that unless he filed a
response showing grounds for continuing the appeal, it could be dismissed for
want of jurisdiction.
2
See Tex. R. Civ. P. 329b(a).
2
Appellant has asserted that the “purpose of this appeal is to appeal the
lower court’s decision to [set aside the default judgment] . . . after the court’s
plenary power had expired.” It appears that the trial court may have acted
outside of its plenary power by setting aside the October 4 default judgment on
December 30. 3 See Tex. R. Civ. P. 329b(d)–(e); Xiaodong Li v. DDX Group Inv.,
LLC, 404 S.W.3d 58, 63 (Tex. App.—Houston [1st Dist.] 2013, no pet.);
Hagemann v. Hagemann, No. 02-08-00045-CV, 2008 WL 755226, at *1 (Tex.
App.—Fort Worth Mar. 20, 2008, no pet.) (mem. op.). But an order that is signed
outside of a trial court’s plenary power and that does not purport to be a final,
appealable judgment is properly challenged through a petition for writ of
mandamus, not through an appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d 602,
605 (Tex. 2000) (orig. proceeding); Young v. Villegas, 231 S.W.3d 1, 6 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied); K.C. Roofing, Inc. v. Lorenzo, No.
04-98-00855-CV, 1998 WL 784406, at *1 (Tex. App.—San Antonio Nov. 12,
1998, no pet.) (not designated for publication); Fenno v. Sam Reece Air
Conditioning & Heating, Inc., 572 S.W.2d 810, 811 (Tex. Civ. App.—Houston
[14th Dist.] 1978, no writ). Therefore, because we hold that we do not have
jurisdiction to review the interlocutory but possibly void order setting aside the
default judgment through this appeal, we dismiss the appeal for want of
jurisdiction. See Tex. R. App. P. 43.2(f); see also Gem Vending, Inc. v. Walker,
3
An order entered outside of a trial court’s plenary power is void. Pipes v.
Hemingway, 358 S.W.3d 438, 445 (Tex. App.—Dallas 2012, no pet.).
3
918 S.W.2d 656, 658 (Tex. App.—Fort Worth 1996, no writ) (“Mandamus is the
appropriate remedy when a trial court enters a void order for new trial outside its
plenary power.”).
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DAUPHINOT, J., concurs without opinion.
DELIVERED: April 17, 2014
4